Writing in International Law and Cultural Barriers (Part I)

[Alonso Gurmendi is an OJ contributor and Paula Baldini Miranda da Cruz is a lawyer, holds an LLM Adv., and is a Ph.D. candidate at Leiden University.]

Today, lack of regional representation in international law practice and academia is a well-known problem. International law is still Western, old, male, and white. Despite efforts to reduce these disparities, they prevail in pretty much every area of international law, including e.g. academic publications, where double-blind peer review would, at least in principle, prevent personal characteristics such as regional origin from playing a role in selection processes.

There may be two explanations for the discrepancies in regional distribution in publications in international law: the first is that there may simply not be enough diversity in submissions (which can be due to linguistic limitations, outreach, etc); the second is that the submission by different people from different regions are less likely to be accepted because they fail to pick-up the editor’s interest or meet their standards.

In this post, we will address the second of these issues. We posit that peripheral scholars may be less represented at least partially because they communicate differently and have different things to say from those that are already part of the establishment of international law (the ‘invisible college of lawyers’). As such, even fluent English speakers, if trained in different academic cultures, face access barriers that are much deeper and structural than mere lack of language skills.

As Latin American scholars, both of us have personal experience in learning to adapt our academic output to international audiences. Not only that, a common talking point with our Global South colleagues, some of them established scholars, is about how hard it is to publish internationally. These conversations are often not about research itself but about how much work they have to put into publishing in widely-known journals of international law.

This challenge is, of course, not unique to Latin Americans, but to all those that come from different legal cultures, outside the prevalent Western or English-speaking academic area. We will use our knowledge and experience in coming from a Latin American educational background to discuss this issue, but believe that Asians, Africans, and non-native English speakers might identify with this discussion.

Cultures in Communication and How they Affect the Development of Scholarly Work

To explain how scholarly culture can affect publication, we need to first see what is generally expected from an ‘international’ law publication. Although this is not an issue that is often openly addressed by academic editors and publishers, there are some instances where journals or their chief editors have discussed this: Weiler’s ‘On my way out – Advice to Young Scholars’ series of editorials (here’s the link to the first of them) covered several issues related to publications and academic life in general and the American Journal of International Law has a guide on how to prepare articles for publication. Assuming that these guides are prepared based on what are the most common problems in the articles submitted to these journals, their main takeaway is that, although language problems are common, international law journals also tend to receive many potentially good manuscripts that are not accepted because, as Weiler describes, they ‘are simply unripe at this stage’.

Weiler attributes this common issue to the quantification of scholarship and pressures that are imposed upon young scholars, leading to under-developed work. What he does not clarify is whether he believes that the “unripeness” he reports is a result of under-developed research or under-developed manuscripts. An under-developed research is that which has gaps in the collection, treatment or interpretation of sources or application of methodology, leading to a wrong or incomplete solution.

Under-developed manuscripts, on the other hand, are those where authors have failed to communicate their research clearly and directly. An under-developed manuscript is one which authors may have done solid research, but are unable to communicate it to other members of its scientific community. Usually, problems in communication are treated as if they were problems of fluency in English language – the common feedback is to ‘have a native speaker to review the text’. This advice may be helpful for fine-tuning a text and making sure that specific points are clear, but does not solve broader structural and presentation issues that arise from legal culture and education.

AJIL provided 16 tips for authors, of which only one effectively refers to language skills (‘have your text reviewed by a native speaker’), compared to ten on how to organize, structure and prepare your argument. Here are our main takeaways from it:

• The introduction is one of the main parts of a scholarly paper and should follow a very specific structure, which include detailed steps of their research and their conclusions;
• Authors must defend the importance of their research and contribution;
• Each section needs to have its role explained in the larger context of the article and how it connects to the overall claims it makes;
• Authors need to contemplate different sides and arguments before making their own;
• Papers need a conclusion section where authors should restate their theses and the arguments that support it, and reiterate its contribution to the field;
• Style should be of plain English, with clear statements and signposts.  

For those trained within mainstream international legal culture, these tips may seem a bit obvious and an inherent part of any good article. But they are not. For example, under many regional cultures, an introduction of a paper is often simply composed of a clear statement of the research problem and questions. There is no need to state your claims or provide a summary of arguments and conclusions. In fact, revealing the conclusion in the introduction can be seen as rude, “spoiling” the article for the reader. Similarly, some writing cultures presume that a well-written piece should not have roadmaps or signposts because they would make it redundant. Rather many times articles can start with an anecdote or a story that sets the scene for the legal arguments involved in the text. Other times, articles do not even need a separate section for conclusions, since it is presumed that the audience will read the entire piece thoroughly and arrive at their own conclusions. And this is only related to writing structure! Many more differences exist in writing style. In Spanish, it is polite to write articles in pluralis modestiae (“we believe”) rather than singular (“I believe”), since this can be seen as dismissive of the reader and its role in the interpretation of the argument. 

To give but one example, let us take you back to March 2012, to our friends at the EJIL Talk! Blog. Back then, Marko Milanovic published an extremely interesting post on the statistics of Brazilian Judge Antonio Augusto Cançado Trindade at the ICJ. As is well known, Judge Trindade tends to be a lone voice of dissent in the Court, usually offering what Marko amicably calls a “human rightist, judicial activist, utopian worldview” that contrasts with the rest of the Court’s pragmatism. For Marko, however, the problem is not one of substance, but (rather importantly for our purposes here) simply of “style and manner”. He just doubts that other judges find it “particularly helpful to read separate opinions that, for example, engaged in extensive comparisons between the real and present victims of human rights violations to Sophocles’ Antigone and Electra”. But Judge Trindade’s tendency to quote ancient documents is not a personal quirk. It is part of his writing culture as a Brazilian lawyer. In Brazilian Constitutional case-law it simply is not at all uncommon for judges to make their points through elaborate theoretical elucubrations that would sound absolutely strange and unnecessary to non-Brazilian readers. Take for example this single sentence by Supreme Court Justice Celso de Mello, on a case related to whether individuals condemned in second instance can be imprisoned before all their procedural appeals are decided:

“In reality, the presumption of innocence, to which Thomas Aquinas already made reference to in his ‘Summa Theologica’, constitutes the result of a long process of political-juridical development, with roots, for some, in the English Magna Carta (1215), although, for other authors, the historical framework that implanted this fundamental right resides in the 18^th century, when, under the influx of enlightenment ideas, this guarantee-right came to be consecrated, initially, in the Declaration of Rights of the Good People of Virginia (1776)” (our translation).

Is this disquisition on the legal origins of the right to presumption of innocence “particularly helpful” to the case at hand? Well, in Brazilian legal culture, yes, it is! In fact, the discussion goes on for several more paragraphs. So when Marko concludes that he has no doubt that “Judge [Trindade’s] fellow judges have long since stopped reading his opinions”, and that “this is a problem for any judge who seeks to persuade his colleagues”, we wholeheartedly agree. But not for the same reasons. The limitations brought about by “style and manner” – writing culture in our terms – have real consequences for Global South scholars; and if nobody is reading Judge Trindade’s writings, an undisputed giant of Latin American international law, then what hope is there for the rest of us?

Cultural peculiarities such as these create important communication gaps that are not the result of lack of fluency in English, but nevertheless affect the presence of peripheral scholars in international law. Journals are not only vehicles or repositories for scholarly work. They also embody and, in many ways, reproduce the mainstream culture and communication tools of their scientific community. A scientific community can only exist and function if its members are able to communicate with each other. And communication is not just about producing grammatically correct sentences or using the same legal terms and principles; it also comes down to how you communicate.  

While relying on different structures and methods of communication might not necessarily result in a rejection, it certainly affects how the production will be read by other scholars. Hence why, for example, classical scholars may refer to the writing styles of even prominent peripheral scholars as ‘cryptic’ or ‘elitist’, terms that are usually used as euphemisms to describe bad writing (see Bianchi about TWAIL at 206, 209, 216). As such, peripheral scholars who do not adapt their communication risk having their scientific work obfuscated by their writing and argumentation styles.

On the long term, not addressing these gaps can have a deep impact in the presence of peripheral scholars in international law scholarship. If these scholars do not learn how to adjust their communication strategies, they will take longer than their colleagues to publish, thus impacting the long-term development of their careers. They may also end up being confined to speaking only to audiences that understand their communication styles, such as TWAIL scholarship (see Bianchi at 209). And not having their voices heard can affect international law as a whole.